1. Applicability. These standard terms and conditions for services (these “Terms”) govern the provision of services by GHB Services, LLC, dba GHB Intellect (“GHB Intellect”) to the individual or entity whose information is entered on the GHB Intellect website at checkout or identified on a written Statement of Work (as defined below) on whose behalf GHB Intellect is performing services (“Client”). The Statement of Work and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Client’s general terms and conditions. Provision of services to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms.
2. Services. GHB Intellect shall provide the services to Client as described in the product/service descriptions on GHB Intellect’s website or any other written agreement between the parties that is, agreed upon by the Parties prior to the commencement of any work (in each such case, the “Statement of Work”), in accordance with these Terms (the “Services”). GHB Intellect shall further endeavor to ensure consistency and continuity with regard to the GHB Intellect employees, staff, personnel, or contractors to provide the services as described in the Statement of Work (the “Services”), so as to maintain consistency and build efficiencies with Client. GHB Intellect shall use commercially reasonable efforts to ensure its employees, staff, personnel, and/or contractors comply with Client’s site regulations when on Client’s premises. If Client purchases Patent Monetization Services, Client agrees that during the term of this Agreement, GHB Intellect shall be the exclusive service provider engaged by Client to pursue monetization, transaction, deal, settlement, damages, or judgment of Client’s patents, properties, assets, patents, applications, technologies, or other intellectual property (collectively, “Intellectual Property”) with one or more third parties (the “Patent Monetization Services”).
3. Term; Performance Dates. This Agreement shall take effect as of the effective date of the Statement of Work or the date Client requests for a product or service through GHB Intellect’s website, and shall continue in force until completion of the Services unless earlier terminated in accordance with these Terms. GHB Intellect shall use reasonable efforts to meet any performance dates specified in the Statement of Work, and any such dates shall be estimates only.
4. Client’s Obligations. Client shall:
a. cooperate with GHB Intellect in all matters relating to the Services and provide such access to Client’s premises, and such office accommodation and other facilities as may reasonably be requested by GHB Intellect, for the purposes of performing the Services;
b. respond promptly to any GHB Intellect request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for GHB Intellect to perform Services in accordance with the requirements of this Agreement;
c. provide such Client materials or information as GHB Intellect may reasonably request to carry out the Services in a timely manner and ensure that such Client materials or information are complete and accurate in all material respects; and
d. obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services.
5. Client’s Acts or Omissions. If GHB Intellect’s performance of the Services and its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, GHB Intellect shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
6. Change Orders. If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. GHB Intellect shall, within a reasonable time after such request, provide a written estimate to Client of: (i) the likely time required to implement the change; (ii) any necessary variations to the fees and other charges for the Services arising from the change; (iii) the likely effect of the change on the Services; and (iv) any other impact the change might have on the performance of this Agreement. Any such Change Order shall only be effective upon execution of the Change Order by both parties.
7. Fees and Expenses; Payment Terms; Interest on Late Payments.
a. In consideration of the provision of the Services by GHB Intellect and the rights granted to Client under this Agreement, Client shall pay the fees set forth in the Statement of Work.
b. Client agrees to reimburse GHB Intellect for all reasonable travel and out-of-pocket expenses incurred by GHB Intellect in connection with the performance of the Services.
c. Client shall pay all invoiced amounts due to GHB Intellect within thirty (30) days from the date of GHB Intellect’s invoice.
d. In the event payments are not received by GHB Intellect thirty (30) days after becoming due, GHB Intellect may (i) charge interest on any such unpaid amounts at a rate of 1 ½ % per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and (ii) suspend performance for all Services until payment has been made in full.
e. If Client has engaged GHB Intellect to provide Patent Monetization Services payments shall be handled as follows:
i. The purchaser of Client’s Intellectual Property will be instructed to provide payment directly to GHB Intellect and GHB Intellect shall be entitled to deduct any commission owed or any previously unreimbursed expenses before distributing the remaining proceeds to Client. If, for any reason the purchaser fails to pay GHB Intellect directly and instead distributes funds directly to Client, Client agrees to notify GHB Intellect of such transfer and to transfer such funds to GHB Intellect within 5 business days of receipt.
ii. The commission payable to GHB Intellect shall be set forth in the applicable Statement of Work and calculated on the total gross monetary and non-monetary value received by Client in exchange for Client’s Intellectual Property.
iii. For a period of eighteen (18) months following the termination of this Agreement for any reason to the extent that Client receives value for any of Client’s Intellectual Property in connection with any monetization, transaction, deal, settlement, damages, or judgment that was initiated or contemplated during the term of this Agreement Client shall be obligated to pay GHB Intellect the fees due to GHB Intellect had this Agreement remained in place through such date.
8. Taxes. Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder.
9. Intellectual Property. With the exception of any intellectual property prepared specifically for Client pursuant to the provision of Services, any and all pre-existing intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Client under this Agreement or prepared by or on behalf of GHB Intellect in the course of performing the Services, including any Content, Reports and/or items identified as such in the Statement of Work (collectively, the “Deliverables”), except for any Confidential Information of Client or Client materials, shall be owned by GHB Intellect. GHB Intellect hereby grants Client a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services.
10. Confidential Information.
a. “Confidential Information” means any information disclosed in connection with the Services by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, including, without limitation, methods, budgets, techniques, algorithms, business plans, customer data, customer lists, customer names, designs documents, drawings, engineering information, know‑how, ideas, inventions, market information, marketing plans, processes, products, product plans, research, specifications, software, source code, trade secrets. Such information shall be Confidential Information whether or not marked, designated or otherwise identified as “confidential.”
b. Confidential Information does not include information that is: (i) in the public domain; (ii) known to the other party at the time of disclosure; or (iii) rightfully obtained by the other party on a non-confidential basis from a third party.
c. Each party agrees to hold the Confidential Information of the other party in confidence and not to disclose such Confidential Information to any third parties except as expressly authorized by the other party or to use such Confidential Information for any purposes other than to provide the Services or to use the Deliverables and the Services, as applicable.
d. Each party may disclose the Confidential Information of the other party only to its employees, consultants and agents who are required to know such Confidential Information for the provision of the Services or the use of the Deliverables and the Services, as applicable, and who are subject to confidentiality obligations similar to the provisions of this Agreement or are otherwise legally obligated not to disclose such Confidential Information. For the avoidance of doubt, Client agrees to use the Confidential Information only to make use of the Services and Deliverables.
e. GHB Intellect shall be entitled to injunctive relief for any violation of this Section.
11. Representations and Warranties.
a. GHB Intellect represents and warrants to Client that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
b. GHB Intellect shall not be liable for a breach of the warranty set forth in Section 11(a) unless Client gives written notice of the defective Services, reasonably described, to GHB Intellect twenty (20) days of the time when Client discovers or ought to have discovered that the Services were defective.
c. Subject to Section 11(b), GHB Intellect shall, in its sole discretion, either: (i) repair or re-perform such Services (or the defective part); or (ii) credit or refund the price of such Services at the pro rata contract rate.
d. The remedies set forth above shall be Client’s sole and exclusive remedy and GHB Intellect’s entire liability for any breach of the limited warranty set forth in Section 11(a).
e. Client warrants that: (i) all information disclosed or to be disclosed by Client necessary for the provision of the Services by the Company is or shall to the best of its knowledge and belief, be true, accurate and not misleading in any material respect; and (ii) its provision of materials to GHB Intellect in connection with the Services shall not infringe or violate any Intellectual Property Rights Confidential Information, and/or any contractual, employment or property rights, duties of non-disclosure or other rights of third parties.
f. Each party warrants that it has full capacity and authority to enter into this Agreement.
12. Disclaimers; Indemnity.
a. The Services and the information, findings and recommendations (“Content”) contained in any reports and/or other communications, written or otherwise, in draft or final form, provided by GHB Intellect (“Report(s)”) are intended solely for the information and use of Client. Client may not rely on any verbal statements or Reports (that are not confirmed by GHB Intellect in writing) or draft written Reports. Client shall not disclose Report(s), or any Content therein, to third parties except as otherwise explicitly permitted. Client is responsible for determining whether the Reports, or any Content therein, satisfy legal, regulatory, or contractual requirements applicable to Client. Client acknowledges and agrees that Client has the ultimate responsibility for all management decisions relating to the Services and Deliverables. GHB Intellect will not be liable or responsible to any third party who benefits from or uses the Services or gains access to the Deliverables provided by GHB Intellect.
b. Client and any third-party beneficiary of the Services, jointly and severally, shall indemnify GHB Intellect and its Affiliates, their successors and assigns and their respective managers, members, officers, employees, agents, representatives, insurers, successors and assigns (the “GHB Intellect Indemnitees”), and save and hold harmless each of them from and against any loss, Liability, injury, demand, deficiency, damage, claim, action, cause of action, obligation, penalty, cost or expense, regardless of whether arising out of third party claims (including reasonable legal fees, expenses, interest, court costs, penalties and all reasonable amounts paid in investigation, litigation, defense or settlement of any of the foregoing) (collectively, “Losses” and individually, a “Loss”), which any GHB Intellect Indemnitee may suffer, sustain or become subject to, as a result of, in connection with, or relating to or arising from (1) Services rendered pursuant to this Agreement, (2) any claim of infringement of any intellectual property or misappropriation of any alleged trade secrets, which in any way relate to the Services, or (3) any breach by Client of any covenant or agreement made in this Agreement.
i. “Affiliate” means, with respect to GHB Intellect, any other individual or business entity directly or indirectly controlling or controlled by or under direct or indirect common control with GHB Intellect.
ii. “Liability” means any liability (whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, due or to become due).
c. Procedure for Indemnification. If any suit, action, claim, Liability, or obligation shall be brought or asserted by any third party (a “Third Party Claim”) which, if adversely determined, would entitle GHB Intellect to indemnity pursuant to this Section 12 (an “Indemnification Proceeding”), GHB Intellect shall, promptly notify Client of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify Client shall not relieve Client of its obligations hereunder, except to the extent such failure shall have materially prejudiced Client. Client shall have 30 days after receipt of the indemnification notice to provide written notice to GHB Intellect of its intent to either accept or deny the claim for indemnification. If Client accepts the claim for indemnity, it shall assume the conduct and control of such Indemnification Proceeding, through counsel reasonably acceptable to GHB Intellect at the expense of Client, and the settlement or defense thereof, and GHB Intellect shall use commercially reasonable efforts to cooperate with Client in connection therewith; provided that Client shall permit GHB Intellect to participate in such settlement or defense through counsel chosen by GHB Intellect (the fees and expenses of such counsel shall be borne by Client). If Client does not notify GHB Intellect in writing within 30 days after the receipt of the indemnification notice of a claim of indemnity hereunder regarding its intent to either accept or deny the request to undertake the defense or settlement thereof, GHB Intellect shall have the right to contest, settle or compromise the claim at the expense of Client. Neither Client nor GHB Intellect shall consent to entry of any judgment or enter into any settlement, except with the prior written consent of Client or GHB Intellect, as the case may be, which consent shall not be unreasonably withheld, conditioned or delayed (which if such consent is unreasonably withheld, conditioned or delayed, the requirement hereunder to obtain such consent shall be deemed waived without further action).
d. Disclaimer of Warranties. Except as otherwise explicitly agreed herein, GHB Intellect makes no warranty whatsoever with respect to the services, including any (i) warranty of merchantability; or (ii) warranty of fitness for a particular purpose; or (iii) warranty of title; or (d) warranty against infringement of intellectual property rights of a third party; whether express or implied by law, course of dealing, course of performance, usage of trade, or otherwise.
13. Limitation of Liability.
a. In no event shall either party be liable to the other party or to any third party for any loss of use, revenue or profit or loss of data or diminution in value, or for any consequential, incidental, indirect, exemplary, special, or punitive damages whether arising out of breach of contract, tort (including negligence), or otherwise, regardless of whether such damages were foreseeable and whether or not such party has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
b. In no event shall GHB Intellect’s aggregate liability arising out of or related to this agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the lesser of (i) the amounts paid or payable pursuant to the applicable Statement of Work in the twelve (12) month period preceding the event giving rise to the claim, and (ii) USD $25,000.
c. The limitation of liability set forth in this Section above shall not apply to (i) liability resulting from a party’s gross negligence or willful misconduct; (ii) death or bodily injury resulting from a party’s negligent acts or omissions; and/or (iii) a party’s indemnification obligations.
a. This Agreement shall terminate immediately on GHB Intellect’s completion of the Services set forth in the applicable Statement of Work. In addition to any remedies that may be provided under this Agreement, either party may terminate this Agreement prior to completion of Services, as follows:
i. GHB Intellect may terminate this Agreement with immediate effect upon written notice to Client, if Client: (A) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Client’s receipt of written notice of nonpayment; (B) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (C) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
ii. Client may terminate this Agreement: (A) by providing GHB Intellect at least 30 (thirty) days’ advance written notice of Client’s desire to terminate; (B) immediately, if GHB Intellect becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors; or (C) by providing GHB Intellect with written notice of termination within 30 days of Client’s receipt of notice from GHB Intellect of an amendment or modification of this Agreement.
b. On termination of this Agreement for any reason: (i) Client shall immediately pay to GHB Intellect any and all of GHB Intellect’s outstanding unpaid invoices and, in respect of Services supplied but for which no invoice has been submitted, GHB Intellect may submit an invoice, which shall be payable immediately on receipt; (ii) each party’s further rights and obligations shall cease immediately on termination, provided those provisions which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Limitations of Liability and Survival, and (iii) each party shall immediately return to the other any documents or other material belonging to the other party (including all copies of such documents and other material) in its possession or control upon the other’s party’s request.
15. Waiver. No waiver by a party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by such party. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
16. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Client to make payments to GHB Intellect hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemic or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other events beyond the reasonable control of the Impacted Party. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
17. Assignment. Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of GHB Intellect. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.
18. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
19. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
20. Governing Law and Jurisdiction. This Agreement and any and all disputes arising in connection with it, including non-contractual matters, shall be governed by the laws of the State of California. Any dispute arising out of this Agreement shall be brought in, and the parties agree and consent to personal and exclusive jurisdiction of and venue in, the state and federal courts within San Diego, California.
21. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Statement of Work or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or email or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section. GHB Intellect may provide notice of changes to these standard terms and conditions for services via email to Client’s primary contact on file with GHB Intellect and by posting such changes on this Website.
22. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
23. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Limitations of Liability and Survival.
24. Amendment and Modification. Unless otherwise explicitly agreed to by the parties, this Agreement may be amended or modified by GHB Intellect from time to time upon notice to Client. By continuing to access or use the website of Services after notification by GHB Intellect of any amendment or modification, Client agrees to be bound by the amended or modified Agreement.
25. No Legal Services Provided. Client understands and acknowledges that GHB Intellect is a technology and business consultancy and not an accounting, investment, or law firm. GHB Intellect does not and will not perform accounting, tax, investment, or legal services for Client, and GHB Intellect’s services should not be used as a substitute for, a replacement of, or relied upon as, the work of accountants, lawyers, or a law firm. Client understands that some intellectual property related services may require GHB Intellect or its contractors to review patents and other documents in order to render GHB Intellect’s services, but GHB Intellect will not be doing that review as a law firm or providing legal advice or opinions.